may remain outside
the jurisdiction of
U.S. courts, civil or
military, for improper
conduct in Iraq.'
The American Spark
Should Private Contractors Provide Security In Iraq?
By Cliff Montgomery - Sept. 5th, 2007
The American Spark has uncovered a fascinating Congressional Research Service report detailing what
may be a rising crisis for democracy: "The use of private contractors to provide security for people and
property in Iraq."
What this means now--and what it may mean to American forces in the future--may be gleaned from the
"The United States is relying heavily on private firms to supply a wide variety of services in Iraq, including
security. From the information available in published sources, this apparently is the first time that the United
States has depended on contractors to provide such extensive security in a hostile environment, although it
has previously contracted for more limited security services in Afghanistan, Bosnia, and elsewhere.
"In Iraq, private firms known as Private Security Companies (PSC) are currently providing security services such
as the protection of individuals, non-military transport convoys, buildings and other economic infrastructure, as
well as the training of Iraqi police and military personnel.
"[...] The use of armed contractors raises several concerns, including transparency and accountability.
"Transparency issues include the lack of public information on the terms of their contracts, including their costs
and the standards governing their hiring and performance, as well as the background and training of those
hired under contract.
"The apparent lack of a practical means to hold contractors accountable under U.S. law for abuses and other
transgressions, and the possibility that they could be prosecuted by foreign courts, is also a source of concern.
"Contractors working with the U.S. military (or with any of the coalition forces) in Iraq are non-combatants who
have no combat immunity under international law if they engage in hostilities, and whose conduct may be
attributable to the United States.
"Section 522 of the John Warner National Defense Authorization Act for FY2007...makes military contractors
supporting the Armed Forces in Iraq subject to court-martial.
"But until the Department of Defense publishes implementing regulations, it is more likely that contractors who
commit crimes in Iraq would be prosecuted under criminal statutes that apply extra-territorially or within the
special maritime and territorial jurisdiction of the United States, or by means of the Military Extraterritorial
Jurisdiction Act (MEJA).
"Iraqi courts do not have jurisdiction to prosecute contractors without the permission of the relevant member
country of the Multi-National Forces in Iraq.
"[But] it is possible that some contractors may remain outside the jurisdiction of U.S. courts, civil or military, for
improper conduct in Iraq.
"For over a decade, the United States has gradually increased the types of tasks and roles for which it
contracts private companies in military operations.
"Congress has generally accepted the concept of using unarmed private contractors to carry out support
functions in military operations, such as providing food and laundry services...But Iraq is in some ways an
atypical situation. There, the United States is relying heavily, apparently for the first time in an unstable
environment, on private firms to supply a wide variety of security services.
"Especially given a shortage of U.S. troops, private security contractors are widely viewed as vital to U.S.
efforts to stabilize and reconstruct Iraq. Nevertheless, many Members are concerned about transparency,
accountability, and legal and symbolic issues raised by the use of armed civilians to perform security tasks
formerly performed by the military, as well as possible long-term effects on the military.
"The numbers employed under U.S. government contracts in Iraq for functions once carried out by the U.S.
military are but estimates.
"The Government Accountability Office (GAO) reported in 2006 that the Director of the Private Security
Companies Association of Iraq estimated that as of March 2006, there were a total of 181 private security
companies with just over 48,000 employees working in Iraq.
"The New York Times [May 19th, 2007, in an article entitled Death Toll for Contractors Reaches New High in
Iraq] attributes to the Pentagon a figure of about '126,000 men and women' as serving as contractors
alongside U.S. troops in Iraq.
"[A July 4th, 2007] Los Angeles Times [piece entitled, Private Contractors Outnumber U.S. Troops in Iraq]...
cited...State Department and Defense Department figures.
"An unknown number are, however, providing security services indirectly under subcontracts with U.S.
contractors. There is no count of the total number of contractors or subcontractors who carry weapons while
performing services contracted for by the United States.
"According to one publication [Privatising Security: Law, Practice and Governance of Private Military and
Security Companies. Geneva, Switzerland: Geneva Centre for the Democratic Control of Armed Forces,
'Not since the 17th century has there been such a reliance on private military actors to accomplish tasks
directly affecting the success of military engagements. Private contractors are now so firmly embedded
in intervention, peacekeeping, and occupation that this trend has arguably reached the point of no
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